Judges acting as mediators in serious criminal cases more often

District judge doesn't mediate his or her own case load

Chief Judge Evelyn Wilson, along with the five other district court judges, are being saved a lot of time that they would normally have to put in to criminal cases because of an increase in the amount of mediation through prosecutors, the defendants and defense attorneys.

Using judges to mediate serious crime cases seems to be gaining traction among prosecutors and defense attorneys in Shawnee County District Court, according to judges.

"We're seeing more mediation in criminal cases, period," Chief Judge Evelyn Wilson said. Mediation in serious criminal cases is a "tool" that more people have become interested in, Wilson said.

In a criminal case, if the prosecutor and the defendant and defense attorney reach an agreement through mediation about what the conviction and penalty should be, then each side has had some control over the case, Wilson said.

"I think it's going very well," District Judge Cheryl Kingfisher said of the mediation of the more serious criminal cases. "The goal of mediation is to bring as much justice as you can to as many people as you can."

Kingfisher, who has mediated five cases and who has had judges mediate two cases assigned to her division, points to the time and resources it has saved for her court division alone. With mediation, that is seven jury trials that didn't happen, Kingfisher said. Not every criminal case has to go to trial, although a defendant who wants a jury trial should have it, she said.

In Kingfisher's division, the cases she has mediated include a homicide, aggravated assault on a law enforcement officer, interference with an officer, alleged sexual abuse of a child, a drug possession case and criminal damage to property.

With mediation, time resources in court personnel, law enforcement officers, and attorneys are saved because the two sides aren't going to "legal warfare" to resolve the case in a trial, Wilson said.

Also, the agreement probably isn't the best or worst possible settlement for either side, but it is something each side can live with, Wilson said.

Another plus in a criminal case resolved by mediation is that victims and witnesses don't have to go through the stress of testifying during a trial, Kingfisher said.

The amount of time to mediate a case varies. In a drug case Kingfisher mediated, it required 45 minutes, while a homicide case took four hours.

By contrast, a homicide trial in Shawnee County often lasts days to two weeks.

Wilson and Kingfisher are two of six district court judges assigned to handle criminal cases.

Mediation by judges in Shawnee County criminal cases started after April when Johnson County District Court Judge Kevin P. Moriarty, as well as a prosecutor and a defense attorney, taught a three-hour class in Topeka about how to mediate criminal cases.

A full house of judges, prosecutors and defense attorneys attended the class, Kingfisher said.

The first step in the process is the prosecutor and defense attorney must decide they want a judge to mediate a case, Wilson said. The mediating judge can't have any conflict of interest or bias.

The judge mediator has to be neutral and "not have a dog in the fight," Wilson said.

The judge assigned to handle a criminal case can't be the judge mediating that case, Wilson said.

The prosecutor and defense attorney can't talk to the assigned judge about the strengths and weaknesses of their case, Kingfisher said. But it is fair for the attorneys to talk to another judge assigned to mediate the case.

Each side can lay out the strengths and weaknesses of his or her case, and the mediating judge can give feedback to each side.

At the same time, the mediator judge doesn't disclose what the prosecutor or defense attorney has told the judge, the judges said.

A defendant in a pending case may be getting a lot of advice from family and friends, the judges said, and in jail, the defendant might be getting inaccurate advice from inmates.

Mediation conducted by a judge is "a rare opportunity for them to talk to a judge, to tell the judge what they think their story is and what their chances are," Kingfisher said. "Maybe they want to be heard, someone to listen to what their side is, then they can take that leap," either to go to trial or perhaps to make a plea.